This
habeas corpus case is before the Court for decision on the
merits. Petitioner filed the Petition (ECF No. 1) and a
Traverse (ECF No. 49). Respondent filed the state court
record (ECF No. 27) and the Answer/Return of Writ (ECF No.
28).

Phillips
pleads the following Grounds for Relief:

GROUND ONE: "As a general rule, a trial
judge may correct an illegal, as opposed to a merely
erroneous sentence at any time, even if it has become
final." State v. Burkhart,566 S.W.2d 871, 873
(Tenn. 1978); Davis v. State,313 S.W.3d 751, cert.
den. (2010), WL 3321488; Hart v. State, 21 S.W.3d
901, 902 (Tenn. 2000). The challenge to Petitioner's
sentence is not that he could plead guilty to a sentence of
thirty-two (32) years for a Class A felony. It is abundantly
clear that the State of Tennessee's position is that a
Class A felony sentence "range" is from "not
less than 15 years to not more than 60 years." [Tenn.
Code Anno. Section 40-35-111 (b)(J)]

However, the Sentence Reform Act of 1989 specifically
provides that sentences fall under one of three categories,
and this condition is based on the number and severity of his
priors and the offense for which the defendant is found
guilty. The Petitioner is found guilty of 2nd
degree murder. He had one prior for a Class C felony, for
which he received probation.

The fact that ordinarily, considering the relevant
requirements of the law applicable to "Range I"
sentences, is that because he had only one
''prior" offense, his sentence range is
"not less than 15 nor more than 25 years" [Tenn.
Code Anno. 40-35-112(a)(J) But, the usurpation of due process
is to be compared to the other relevant fact that Petitioner
received a sentence within Range II, which the State of
Tennessee describes as a ''best interest plea",
of 32 years for 2nd degree murder.

The sentence he received is challenged because of the denials
of due process attendant to the guilty plea hearing which
resulted in his guilty plea. Petitioner would add however,
that the essential question is latent in the nature of the
guilty plea, that resulted in him being sentenced outside
Range I. The Sentencing Reform Act of 1989 factors governing
sentences in the state of Tennessee for a Range I sentence,
provide that Petitioner's sentence may fall within one of
three categories of Range I, Range II or Range III, depending
on his priors and the validity of a waiver of the
defendant's right to be sentenced according to the lawful
Range. T.C.A. § 40-35-210(b). See State v.
Ashby, 823 S.W.2d 166 (Tenn. 1991). Further, for a Class
A sentence for the offense of 2nd degree murder, to exceed 25
years it must fall in Range II or Range III. Range II
sentences begin at 25 years to 40 years. According to law,
petitioner had to be sentenced as a Range I offender, unless
he was informed he was being sentenced as a Range II or Range
III offender felony class, for 2nd degree murder, even though
Range II "multiple" offender requires ''2-4
priors", according to the Sentence Reform Act. [T.C.A.
§ 40-35-106(a)].

GROUND TWO: ''A 'knowing'
waiver is one that is "made with full awareness of both
the nature of the right being abandoned and the consequences
of the decision to abandon it." State v.
Stephenson, 878 S.W.2d 530, 544-45, citing, Fare v.
Michael C., 442 US. 707 (1970); North Carolina v.
Butler, 441 U.S. 369 (1979). In petitioner's case,
there is no evidence on the record that he waived his rights
knowingly and intelligently, as there was no discussion of
the nature of the "best interest" sentence's
illegality that was being waived. Further, the 32 year
sentence at 100% is equivalent to a LIFE sentence in 2009.
Life sentences in Tennessee equal thirty-six calendar years
with a minimum of twenty-five years before release
eligibility. (T.C.A. §§ 40-28-116; 40-35-501
(h)(1): "Release eligibility for each defendant
receiving a life sentence of imprisonment for first degree
murder shall occur after service of sixty (60%) of sixty (60)
years less sentence credits earned and retained by the
defendant, but in no event shall a defendant sent to
imprisonment for life be eligible for parole until the
defendant has served a minimum of twenty-five (25) full
calendar years of the sentence.... "

In Tennessee, "... waiver will not be presumed where
there is no evidence ... to indicate that the appellant was
made aware of the issue. " See also United States v.
Young, 73 F.Supp.2d 1014, 1024 (N.D. Iowa 1999);
State v. McClintock, 732 S.W.2d 268 (Tenn. 1987);
State v. Mackey, 553 S.W. 337 (Tenn. 1977);
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709. In
Mackey, supra, the court found that under
Boykin v. Alabama, a defendant waives numerous
constitutional rights upon a plea of guilt. These rights
cannot be waived unless there is an affirmative showing that
the guilty plea was intelligent and knowingly made.

The affirmative showing can only be met by the trial
court's questioning and advising the accused of the
significant consequences of a guilty plea. In Tennessee,
Mackey imposed on trial court's even stricter
standards than those mandated by the gold standard in
Boykin, which included specific warnings and advice
which the defendant must receive as part of his plea. See
Tenn. Rule of Criminal Procedure Rule 11. See
also Brady v. United States, 397 US. 742, 747 (1990).
Best interest was written at some point in time on the
judgment form, but the 4 comers of the form do not contain
any signature or proof that Rule 11 was complied with.
According to Rule 11, T.R.Crim. P., a sentence is a form of
trial... as such the Defendant's right to be heard, to
have the sentence of "best interest" explained to
him, to have the "waiver" explained to him. A
defendant cannot waive rights he didn't know he had.
Cf. Taylor v. State, 2013 WL 6797398, citing,
State v. Muse, 967 S.W.2d 764, 768; Tears v.
State, 2013 WL 6405734 (12-6-13). T.R. Crim. P. 11
(b)(J)(H)(1).

Petitioner submits that the sentencing judge did not
"insure that the plea was voluntary". Id.
T.R. Crim. P. 11 (b)(2). This omission constitutes a denial
of due process of law. Petitioner is not contending that he
could or could not be sentenced to the "statutory
minimum and maximum sentences for a particular sentencing
range...: See Phillips v. State, No. M20 l
3-02026-CCA-R3-HC; 4-2314) Petitioner[sic] claim is that no
one explained the real meaning of his so-called "Best
Interest" plea and especially the meaning of his waiving
his right to be sentenced within the Range II sentence range
for a conviction of 2nd degree murder.

Tennessee judicial system has strong legal structure for
substantive and procedural due process in order for a
defendant to plead guilty, in particular to the particular
plea known as a ''best interest" plea outside
the sentence range provided by law for the defendant. See
State v. McClintock, 732 S.W.2d 268 (Tenn. 1987) In this
case, the state's prosecutor was the only source for
which any reference to a ''best interest plea"
was made:

Judge, on his plea of guilty to-- I think he is going to
plead this as a best interest plea of guilty of second degree
murder. The defendant would also waive his range of
punishment on that for a total sentence of 32 years at 100
percent.

GROUND THREE: Petitioner had not received
constitutionally effective assistance of counsel during the
penalty phase in part because of Defense Counsel's
failure to adequately investigate and present mitigating
circumstances during the penalty hearing.

The issue of ineffectiveness of counsel goes directly to
sentencing. One of the most important functions of the
defense lawyer is to represent the client zealously at the
sentencing hearing. Cf Wiggins v. Smith, 539 U.S.
510, 523, 123 S.Ct. 2527 (2003): [counsel's failure to
investigate and present mitigating circumstances during the
penalty phase deprived defendant of effective assistance of
counsel]. A defendant can be sentenced within Range II only
if he is found to be a "multiple offender", or is
found to have committed an especially aggravated offense.
T.C.A. § 40-35-202(b)(2). The Petitioner's
trial attorney Public Defender Ms. Dykes, the State's
attorney and the trial Court are all state actors. In
Coffman v. Bomar, 220 F.Supp. 343, the court held
that "any default of court appointed counsel in
Tennessee criminal case must be attributed to State in
testing application of Fourteenth Amendment". U.S.C.A.
Const. Amend 14. Petitioner plight fell under either a
"mitigated" offender or at the most a
"standard" Range I offender.

Petitioner was by law a "Range I" offender, even
facing the charge of 1st degree murder. When he was offered
the plea to 2nd degree no one explained nor did he understand
that a conviction for 2nd degree murder by best interest
guilty plea can be sentenced as a Range I or Range II
sentence, even though he rightly belongs in range I for that
offense. When he was offered the plea to 2nd degree, he
agreed because it was a lesser charge, not because he was
willing to be sentenced outside the range for that offense.
This was his complete understanding.

As to Range I or Range II, he had no knowledge of how he
could or would be sentenced in terms of the sentencing
ranges. Petitioner could still have entered a "best
interest" plea to 2nd degree murder as Range
I. Cf in the Tennessee case of Demarcus Sanders v.
State, (No. W201 2-01685-CCA-R3-PC; 2013 WL 6021415,
Tenn. Crim. App. Nov. 8, 2013) where that defendant received
a "25 year sentence" - the maximum for "Range
I" - for 2nd degree murder. Id. At *2.

Only after his plea was entered and long after he was
sentenced, did he come to know that the sentence he received
of 32 years, was in excess of the amount of time he would
have received based on the statutory guidelines of priors as
a Range I sentence. When or where did petitioner affirm that
he understood the different "ranges of punishment which
he was essentially waiving", (No.
M2013-02026-CCA-R3-HC), when the record is devoid of how this
required understanding was had? The Criminal Court of Appeals
opinion that the Defendant "... affirmed that he
understood the charges against him and their respective range
of punishment". Petitioner did not understand that he
would be pleading guilty to a sentence in a "Range"
beyond what his criminal history allowed.

GROUND FIVE: "A void judgment is one in
which the judgment is facially invalid because the court
lacked jurisdiction or authority to render the judgment or
because the court lacked jurisdiction or authority to render
the judgment or because the defendant's sentence is
expired." Taylor v. State, 995 S.W.2d 78, 83
(Tenn. 1999); State v. McConnell, 12 S.W.3d 795,
797.

"Subject matter jurisdiction concerns the court's
authority to adjudicate a matter. Jacob v. Partee,
citing, In re Estate of Trigg, 368 S.W.3d 483, 489
(Tenn. 2012). Jurisdiction is conferred by statute and by the
constitution of the United States, and cannot be waived or
conferred by the parties by silence, consent, or plea.
Id. An order of a court acting without subject
matter jurisdiction is void. Id. -The question of
subject matter jurisdiction may be raised at any time in any
court." Partee, supra, 2013 WL 5817450
(10-30-13), @#2, citing, Freeman v. CSX Transp.
Inc., 359 S.W.3d 171, 176 (Tenn. Ct. App. 2010); See
also May v. Carlton, 245 S.W.3d 340, 344 (Tenn. 2008)
citing, State v. Burkhart, 566 S.W.2d 871, 873
[Tenn. 1978]: "An illegal sentence, one whose imposition
directly contravenes a statute, is considered void and may be
set aside at any time. "

Petitioner contends that the only way the State of Tennessee
can justify sentencing him beyond his lawful range for
punishment, is that someone, anyone, came forward and upon
the record in open court, clearly established that they
informed the Defendant that "this is a Range I sentence
and this is a Range II sentence. Although you are (otherwise)
a "Range I” offender, you are being sentenced as a
"Range II" offender because you could have been
facing a greater sentence had you enjoyed your right to a
jury trial and the jury found you guilty beyond a reasonable
doubt." The record does not reveal this kind of
instruction or admonishment by the sentencing court or by
defense counsel.

The State was quoted in the Criminal Court of Appeals Opinion
(Id., pg. I; No. M2013-02026-CCA-R3-HC; 4-23-14)
"Judgment (form) specifically 'stated' that,
"Defendant waives range of punishment for Murder
2nd & will receive 32 yrs as Range 2.”
(No. M2013-02026-CCA-R3-HC. Other than this
"judgment" form, which was not signed by counsel or
petitioner, nowhere in the State's "offer of
proof' does anyone state on the record that Petitioner
was advised that "you are a Range I offender, but you
are waiving that range of punishment, in order to be
sentenced to a 'total sentence of 32 years at 100 percent
at Range II". This sort of explanation is the only way
the State can fairly say that the Petitioner knowingly and
understandingly waived his right to be sentenced for 2nd
degree murder, outside of his Range.

His prior criminal history established that he was more
correctly a Range I offender, and he could still have
received a maximum sentence of 25 years, and been a
"best interest" plea due to the degree of offense,
not the sentence outside the range. A plea bargain also
results in a lesser included offense.

GROUND SIX: Whether the trial court
dismissal without reliance on the guilty plea hearing
transcript was an abuse of discretion.

What the· sentencing court noted on the judgment form
that the petitioner had "waive[ d] range of punishment
for murder 2nd and will receive 32 years as Range
2", was not known by petitioner until after he got to
prison and a counselor gave him a copy of his judgment.
(See State's Motion to Dismiss, 8-14-2013, Case
No. 13-CV-39). Petitioner did not voluntarily, knowingly and
intelligently waive his rights. U.S. Const. Amend. 5;
Const. Art. I § 9, where he did not have a
"rational as well as factual understanding of the
proceedings: State v. Blackstock, 19 S. W, . 3d 200, 205,
citing, Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788,
789 (1960).

The State is attempting to parlay the writing on a judgment
"form" that was not signed by petitioner or his
attorney, as equivalent to the U.S. Supreme Court requirement
that waiver must be in open court. North Carolina v.
Alford, 400 U.S. 25, 31 (1970); Boykin,
supra, 395 U.S. at 244. "in considering the
validity of a judgment, an examination of the underlying
record is appropriate in habeas corpus proceedings."
Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998).
A trial court abuses its discretion when it causes an
injustice by applying an incorrect legal standard, reaches an
illogical result, resolves the case on a clearly erroneous
assessment of the evidence, or relies on reasoning that
causes an injustice." Dickson v. Kriger, 2012
WL426601; Gonsewski v. Gonsewski, 350 S.W.3d 99, 105
(Tenn. 2011).

The sentencing State court did not follow the statutory
sentencing procedure, did not make findings of fact that are
adequately supported in the record, and did not give due
consideration to the factors and principles that are relevant
to sentencing under the Tennessee Sentence Reform Act of
1989. T.C.A. § 40-35-117; § 40-35-112.
(Sentence ranges) The sentencing court abused its discretion
in sentencing him to a sentence outside of Range I and
outside of his knowledge and understanding.

In order to ensure that a defendant understands the
constitutional rights being relinquished, the trial court
must advise the defendant of the consequences of a guilty
plea, and determine whether the defendant understands those
consequences. Boykin, 395 U.S. at 244.
Blankenship v. State, 858 S.W.2d 897, 904 (Tenn.
1993).

GROUND SEVEN: Whether the defendant received
“NOTICE” from the State of Tennessee that his
plea was a best interest plea rather than a guilty plea?
Amend, 5, 6, 14. Tennessee.

However, the State's attorney was not the one who was
charged with the duty of explaining to petitioner what rights
he was waiving with respect to this particular plea. Note
that there is no reference by the State's district
attorney general to Range I or Range II. And nothing
whatsoever from the trial Court Judge. What the district
attorney general was required to do by law as a matter of due
process to the defendant, is provided by statute T.C.A.
§ 40-35-202 (a):

If the district attorney general believes that a
defendant should be sentenced as a multiple, persistent or
career offender, the district attorney general shall file a
statement thereof with the court and defense counsel not less
than ten (10) days before trial or acceptance of a guilty
plea; provided, that notice may be waived by the defendant in
writing with the consent of the district attorney general and
the court accepting the plea. "

T.C.A. § 40-35-202 (a).

It is not the State's district attorney general's
duty to provide that the Defendant's plea be knowingly,
understandingly and intelligently made. Yet, in this case,
the only reference at all to the sentence petitioner
received, was made by the court, and the reference was to the
"nulled" charge of "Count III". (See pg.
5, Ins. 4-5) No reference to the charge or sentence received.
What makes the sentence unconstitutional is the absence from
the trial court, to the Defendant advising him of the nature
of the plea in terms of the sentence. The State takes a look
at it, but in no way can the uncertain characterization of
the State fulfill the requirements of the law:

"I think he is going to pleaThis as a best
interest plea". [lns. 4-5, pg. 8)

The significance of these glaring denials of petitioner's
constitutional federal 5th, 6th and 14th amendment rights to
notice, equal protection and to due process of law, is that
had the district attorney general put Petitioner on
"notice" that he "believes that a defendant
should be sentenced as a multiple ... offender" we may
not be having this argument now.

Putting petitioner on notice that he would be sentenced as a
Range II multiple offender as required by T.C.A. §
40-35-202 (a), may well have brought with it an
explanation that (1) petitioner did not meet the statutory
number of priors to otherwise plead guilty to a sentence of
32 years, and (2) the State intended nonetheless to induce
him as a Range II offender as part of the "best
interest" plea bargain, and reduce the offense in lieu
of giving up his rights to trial by jury, the presumption of
innocence, right to counsel during trial, right to direct
appeal, to witnesses in his own behalf, and to cross examine
any adversarial witnesses, and of course the right not to be
compelled to be a witness against himself.

GROUND EIGHT: Whether the petitioner
knowingly understanding and intelligently pled guilty to an
out of range sentence of 32 years at 100% as a Range I
offender? The judgment form is void of proof that the
Petitioner knowingly accepted the terms of the expressed
judgment.

Only the signature of the prosecutor and the judge are
preserved on the form. Petitioner contends that because of
the illegality of his sentence, his sentence should be set
aside: "Due process provision of Federal Constitution
requires that pleas of guilty be knowing and
voluntary; a knowing and voluntary guilty plea
includes the intentional relinquishment or abandonment of
known rights." Johnson v. State, 834
S.W.2d 922 (Tenn. 1992):("... knowing and intelligent
waiver of fundamental rights''). The United States
Supreme Court has provided the essential requirements in
order for a guilty plea to be knowingly, understandingly, and
intelligently made, in order for the State to rest on its
conclusion that there was an "intentional abandonment of
a constitutional right." Johnson v. Zerbst, 304
U.S. 458, 468, 58 S.Ct. 1019 (1938) [Relinquishment of
certain constitutional rights including right against self
incrimination will not be presumed from silent record;
therefore unless there is affirmative showing that plea was
knowing and voluntary, guilty plea may be vacated upon
collateral attack. Id.] SeeState v.
Mellon, 118 S.W.3d 340, 345 (Tenn. 2003); State v.
Mackey, 553 S.W.2d at 340.

GROUND NINE: Whether defense counsel
explained to the Defendant the difference between a Range I
and Range II sentence? Counsel was never asked in open court
did he explain to the Defendant, the "best interest
plea" to a sentence ...

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